Please note: absentjustice.com is a work in progress: last edited in February 2021.
All of the main events as quoted on this website are supported by copies of the original documents (confirmation data) which are linked in the text: for example, FrontPage Part One File No/1, Main Evidence File No/3 or Prologue Evidence File 1-A to 1-C. Clicking on these links with your cursor will automatically open a PDF of the exhibit. By using this method and following the various file nos discussed in our various pages – see menu bar above, i.e., Absentjustice – Preface, Manipulating the Regulator and Absent Justice Part (1) – you will be able to verify our story. Without those documents, most people would really struggle to believe that the Casualties of Telstra (COT) claimants have actually lived through these appalling events. Adding a mini-story to those exhibits, as we have done, allows the reader to understand better the significance of those exhibits.
Until the late 1990s, the Australian government fully owned Telecom, Australia’s telephone network and the communications carrier (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. When four small business owners had severe communication problems, they were forced into arbitration with Telstra, in order to have their issues fixed. The arbitrations were a sham: the appointed arbitrator not only allowed Telstra to minimise the Casualties of Telstra (COT) members’ claims and losses, but the arbitrator also bowed down to Telstra and let the carrier run the arbitrations. Telstra committed serious crimes during the arbitrations yet, up to this day, the Australian government and the Australian Federal Police have been unable to hold Telstra, or the other entities involved in this deceit, accountable. Why is Telstra above the law?
On 23 March 1999, almost five years after most of the arbitrations had been concluded the Australian Financial Review (newspaper) reported on the conclusion of the Senate estimates committee hearing into why the COT Cases were forced into a government-endorsed arbitration without the necessary documents they needed to fully support their claims i.e.
“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”
I doubt there are many countries in the Western world governed by the rule of law, as Australia purports to be, that would allow a group of small-business operators to be forced to proceed with a government-endorsed arbitration while allowing the defence (the government who owned the corporation) to conceal the necessary documents these civilians needed to support their claims.
My name is Alan Smith. It was my constant complaints to AUSTEL, and my local member of parliament the Hon David Hawker MP, that finally bore fruit when, for the first time in this story, Telstra investigators came to Cape Bridgewater on 3 June 1993. At last, I thought, I would be able to speak directly to people who knew what they were talking about.
I should have known better. It was just another case of ‘No fault found.’ We spent some considerable time ‘dancing around’ a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally, they left.
A little while later, in my office I found that Aladdin had inadvertently left behind his treasures: the Briefcase Saga was about to unfold.
The briefcase was not locked, so I opened it to find a document staring at me titled ‘SMITH, CAPE BRIDGEWATER’. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.
The first thing that rang bells was a Telstra document dated 2 July 1992, concerning the Portland Ericsson AXE telephone exchange which stated:
“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.
“They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.” (See False Witness Statement File No 3-A)
Another document revealed that Telstra knew that at least one major fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks they later told the COT arbitrator. Here was Telstra at its worse or was there more to come.
It is clear from Folios C04006, C04007 and C04008 Telstra already knew my phone complaints were valid on 3 June 1993, when they inadvertently left their briefcase of treasures. These three documents headed TELECOM SECRET (see Home Page Part Two Evidence File No/8 states:
“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.
“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”
And so my story begins.
This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. The story of how for years Telstra (in the earlier days called Telecom) refused to address the many phone problems that were affecting the capacity of the COT Four to run their businesses, telling them ‘No fault found.’
How, when the COT Four presented their dispute to the government, they were manipulated, pressured and squeezed into an unfair and costly arbitration.
How Telstra and its legal defence team perverted the course of justice in the arbitration process by such dubious strategies as intercepting faxes and conversations (bugging), failing to deliver crucial FOI documents (or delivering them months and even years too late, often so highly censored that little intelligible remained), even destroying documentary evidence and fabricating evidence.
How central points in my claim at arbitration were ignored by the arbitrator and how no amount of effort to have these points addressed bore any fruit.
How, in the course of all these travesties, the regulatory bodies — Austel (for the government) and the TIO (for the carriers) — failed to exercise any control over Telstra to the point where they could reasonably be seen as acting in concert.
Together, these travesties spell a break-down of justice, way out of proportion to the problem we began with — people asking that their phone services be guaranteed to work to a reasonable standard so that they can reliably conduct their businesses.
What is the nature of the faults we are talking about? Customers or potential customers try to ring you, only to get a dead line, or for the phone to ‘ring’ without being picked up as if no-one was there; or to be met by a recorded announcement saying the number is not connected at all. And when calls do connect, for the connection to drop out, as they might these days on a mobile, but this is landlines we are referring to. Faxes missing in the network, or only blank sheets arriving.
Each of the COT members assumed, as most telephone users would assume, that their phone faults would be quite easily found and fixed by Telstra’s skilled technicians. But ‘No fault found’ was the constant refrain, and the problems continued unabated throughout the course of our arbitrations, and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone, the system is supposed to work for everyone. What was going on?
And why did it seem everyone was protecting Telstra, turning a blind eye to what was unlawful behaviour? Withholding important discovery documents in an arbitration procedure is unlawful. Tampering with evidence in the arbitration is unlawful. Relying on defence documents that are known to be flawed, in arbitration, is unlawful. Phone tapping of conversations without a warrant is unlawful. Someone within Telstra must have authorised this criminal conduct. The TIO, and Austel often enough, refused to act; Members of Parliament when in Opposition were happy to provide support for the COT cause, but as soon as the government was theirs, that support vanished. No-one was prepared to make Telstra accountable. It was enough to make the most level-headed person suspect conspiracies.
The depths to which Telstra stooped in its conduct with the COT claimants seems to suggest just how little confidence Telstra had in its own case. But why was it so fearful of being found liable? What was the worst that could happen if our claims were vindicated? What was it trying to conceal?
What became incontrovertibly clear from documents Telstra released to us years later — did they think we had gone away by then? Lost our appetite for a fight? Or were they simply convinced in their own invincibility? — was that Telstra well knew its systemic problems, and it knew how to solve them. But it did not want to admit publicly that there were systemic problems, because it wanted to avoid a major overhaul of degraded infrastructure (at great capital expenditure), especially in rural areas, where many of the COT cases originated.
How could anyone, have doubted the magnitude of my fault complaints or stated they were unsubstantiated when the government itself, using documents officially accessed from Telstra, showed my business suffered significantly over a six-year period due to Telstra’s deficient service (see AUSTEL’s Adverse Findings).
These 68-pages of Adverse Findings prepared by the government regulator in March 1994 were concealed from the arbitration process and was not released until November 2007, twelve years after the conclusion of my arbitration. In simple terms, the statute of limitations for me to have used these government findings had well and truly expired. Why would the government conceal irrefutable evidence like this from an arbitrator? Was it withheld from the arbitration discovery process so that Telstra could avoid an overhaul of infrastructure in their rural exchanges? Because eventual privatisation was on the cards? I don’t know, but the government regulator allowed Telstra to use its position as one of Australia’s largest companies to cover up our stories. The problem with the COT Four was that united, we persisted. We wouldn’t let up until we have a telephone service fit for purpose.
This story concerns my case in particular and, within that, a number of examples of serious injustices that I have experienced over the years, injustices that have also been experienced by other Telstra customers. One of those injustices occurred back in 2005, when Senator Barnaby Joyce was still a rookie Parliamentarian and the privatisation of Telstra was being voted on, in Parliament. Senator Joyce grabbed the opportunity that appeared at the time and cleverly brokered a deal – on behalf of the members of COT – with the then-Minister for Communications, Senator Helen Coonan. Senator Joyce had earlier met with some of the members of COT and completely understood our problems; he wanted the truth about our COT claims to be revealed by having our arbitrations independently assessed, so then he met with Senator Coonan, who agreed to organise this assessment but, as soon as Senator Joyce had honoured his side of the deal, by casting the crucial vote that the Senate needed for the privatisation of Telstra, Senator Coonan promptly reneged on the entire deal (see Helen Coonan’s broken promise).
I have now spent many, many years fighting for justice, for all the COTs, trying to find a resolution for all of us who have suffered appallingly, for years and years, as a direct result of a failed arbitration and mediation processes and Helen Coonan’s broken promise, but to no avail. In fact, I became part of this fight for justice more than two decades ago and, so far, we have taken that fight through countless different avenues (see 12 Alternative remedies pursued). Perhaps the most important thing I have learnt along the way is that there are many very powerful people here in Australia, and it seems that they all support Telstra, regardless of the damage that support does to innocent, honest, Australian business people.
I ask you to consider two witness statements, dated 8 and 10 August 2006, referring to the 1999 and 2001 Major Fraud Group investigations into whether Telstra perverted the course of justice during the COT arbitrations: one statement was prepared by a government public servant/ex-police officer and the other by an ex very-senior Telstra protective officer (later promoted to the principal investigator). Both statements are discussed on our Absentjustice Preface page AFP Evidence File No 13. Members of the current government were provided with copies of these witness statements, without redactions. Sadly, the information in these two witness statements, to date, has not been acted upon.
The Telstra ex-senior protective service officer’s witness statement discusses a then still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex-senior protective service officer alleged, just think how this continued and unaddressed harassment, by Telstra officials, left the COT cases during and after their government-endorsed arbitrations. NONE of us has ever received an apology from the government, who still owned Telstra when this harassment commenced in 1992 (see Australian Federal Police Investigation File No/1) and continued well past the Major Fraud Group investigations of 1998 and 2001.
After the Federal Government put the Major Fraud Group Victoria police under political pressure to abandon the four COT claims of fraud against Telstra, I met two senior Victorian police officers who apologised for what they realised was truly an ordeal for me: not only my failed arbitration but also the failed Victoria Police investigation. I was provided with a small A4 storage-box, taped shut. They advised me my four larger boxes of evidence would be couriered to my designated location. I asked if this small package could be included, as I preferred not to carry it away. The look in the eyes of the police officer in charge was stern and direct, and when he stated, “NO, you take this box with you now,” I didn’t argue!
It turned out that this box contained some startling documents I had not seen before, documents that would shock most Senators today, but which clearly indicated that their predecessors had allowed only five of the twenty-one legitimate COT claimants to have access to discovery documents and had also organised compensation for those five, compensation that ran into the millions upon millions of dollars in hush money, and all of that was accomplished so that the Telstra Corporation could be privatized. Now, if I am wrong, and that is not the case, then why were the remaining sixteen COT claimants all denied access to any of the privileges that the five ‘litmus test cases’ had been granted, and why did a letter from the Senate Estimates Committee Chair advises the police that two In-camera Hansard records, dated 6 and 9 July 1998, must not be provided to anyone outside of the Major Fraud Group and, if someone did reveal them then that person risked being sentenced to jail? Interestingly, the 9 July 1998 Hansard clearly states that to only award compensation to the ‘litmus test five COT cases’ that were being investigated by the Senate Committee Working Party, and not to the other sixteen claimants, would be an injustice? (see An injustice to the remaining 16 Australian citizens).
It might be hard to believe but, back in August 2001, and again in December 2004, the Australian Government threatened, in writing (see Senate Evidence File No 12), to have me charged with contempt of the Senate if I was to ever disclose these in-camera Hansard records, even though those documents could well have won our cases on appeal had we been able to use them. Where is the justice in that? Being charged with contempt of the Senate can result in a two-year jail term and, of course, the Government has always known that but, if I had been in a position to safely go ahead and make these documents public, I wouldn’t be writing this story now. So how can the Senate continue to hide what they have already reported in parliamentary privilege documentation concerning Telstra’s gross misconduct during their defence of our arbitrations? How is this democratic?
Although this might seem to be a story about telephones it is actually about human suffering, wrought by a large corporation with too much power.
The much longer highlighted introduction to our story is available by clicking on Absentjustice.com – Preface and the various other mini-stories on the above menu bar.
The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005, Division 1: Defamation and the General Law (see www.legislation.vic.gov.au/Domino/Web-Note).
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